The heat stabilisers cartels
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Article Author: Patricie Eliasova, Josefine Hederström, Willibrord Janssen and Eline Post
On 11 November 2009, the Commission adopted a
prohibition decision against suppliers of tin stabilisers
and ESBO/esters (two types of heat stabilisers)
and one consultancy firm.
1. Introduction
On 11 November 2009, the Commission adopted a
prohibition decision against suppliers of tin stabilisers
and ESBO/esters (two types of heat stabilisers)
and one consultancy firm.
The Decision found that
they had operated two single and continuous cartels
on tin stabilisers and on ESBO/esters respectively.
The Commission imposed fines of more than EUR
173 million on them for infringing Article 81 of the
Treaty (2) and Article 53 of the EEA Agreement.
The Decision was addressed to the following undertakings:
– For the tin stabilisers cartel: Akzo Nobel, Elementis,
Elf Aquitaine (including Arkema France
and CECA), Baerlocher, Chemtura, BASF, Reagens
and AC-Treuhand.
– For the ESBO/esters cartel: Akzo Nobel, Elementis,
Elf Aquitaine (including Arkema France
and CECA), GEA Group, Chemson, Aachener
Chemische Werke Gesellschaft für glastechnische
Produkte und Verfahren mbH, Chemtura,
BASF, Faci and AC-Treuhand.
The operation of the two cartels was particularly
well organised. The suppliers were careful to cover
their tracks by meeting and keeping documents at
locations outside the jurisdiction of the European
Commission. A consultancy firm based in Switzerland,
AC Treuhand, organised the meetings, kept
the documents at its premises and monitored the
arrangements. Also, AC Treuhand was fined for
having
participated in the cartels.
2. Products concerned
Heat stabilisers are added to PVC products in order
to improve their thermal resistance. The cartels
covered two product categories: tin stabilisers and
ESBO/esters. Tin stabilisers are used to avoid decomposition
caused by heat during the processing
of PVC into final products. Their two main applications
are in rigid PVC products, such as packaging,
credit cards, pipes, fittings, profiles and bottles and
plasticised PVC products, such as coatings, flooring
and car interiors. ESBO/esters are used for plasti-
(1) The content of this Article does not necessarily reflect the
official position of the European Commission. Responsibility
for the information and views expressed lies entirely
with the authors.
(2) Now Article 101 TFEU.
cised PVC products (as plasticisers and heat stabilisers).
They are commonly used in products such
as food packaging materials, medical products, different
kinds of film gaskets, sheet materials, tubing,
refrigerator sealing strips, artificial leather, plastic
wallpaper, electrical wires and cables and floor coverings.
At the time of the infringements, the combined
markets for tin stabilisers and ESBO/esters in
the EEA were worth some EUR 121 million.
3. Procedure
In November 2002, Chemtura applied for immunity
under the Commission’s 2002 Leniency Notice. (3)
The Commission launched surprise inspections in
February 2003 in Germany, France, Italy and the
United Kingdom. This was the first time that surprise
inspections had been carried out by the European
Commission and the American, Japanese and
Canadian antitrust authorities simultaneously. (4)
Subsequently, Arkema France, Baerlocher, Akzo
Nobel and BASF applied for leniency under the
2002 Leniency Notice.
During the inspections at Akcros Chemicals (UK),
which belonged to the Akzo Nobel group at the
time, its representatives claimed that certain documents
were covered by legal professional privilege.
Following an application by Akzo Nobel and Akcros
Chemicals in April 2003 for the annulment of
several Commission decisions, the issue of the disputed
documents was settled by the Court of First
Instance (now General Court) in its judgment of
17 September 2007. (5) The Court dismissed the actions
brought by Akzo Nobel and Akcros Chemicals
and found that the documents were not covered by
legal professional privilege.
The Commission issued a series of requests for information.
On 17 March 2009, a Statement of Objections
was issued. The Decision was adopted on
11 November 2009.
(3) Commission notice on immunity from fines and reduction
of fines in cartel cases (OJ C 45, 19.2.2002, p. 3–5).
(4) Commission press release of 13 Februar y 2003,
Memo/03/33.
(5) Joined Cases T-125/03 and T-253/03 Akzo Nobel Chemicals
Ltd and Akcros Chemicals Ltd v Commission, [2007]
ECR II-3523.
The heat stabilisers cartels
Patricie Eliasova, Josefine Hederström, Willibrord Janssen and Eline Post (1)
52 Number 1 — 2010
Cartels
4. The cartels
The Decision concerns two cartels: one covering tin
stabilisers and the other covering ESBO/esters. The
tin stabilisers cartel lasted from February 1987 until
March 2000. The ESBO/esters cartel lasted from
September 1991 until September 2000. The duration
of the involvement of each individual undertaking
varied. Both cartels covered the territory of
the EEA.
The objective of both cartels was to increase and
maintain prices in the EEA above normal competitive
levels and to sustain this objective through customer
and sales volume allocation. The participants
engaged in anticompetitive arrangements which
consisted of:
(a) fixing prices;
(b) market sharing by fixing quotas;
(c) sharing and allocating customers; and
(d) exchanging commercially sensitive information.
The principal decisions for both cartels were taken
at meetings organised by AC Treuhand, which made
its premises in Switzerland and its services available
to the suppliers involved. For a considerable
proportion of the infringement periods, AC Treuhand
monitored the implementation of the agreements
on sales quotas and on fixed prices. During
the meetings, AC Treuhand distributed “red” and
“pink” papers containing details of fixed prices and
allocation of sales volumes. Those papers were not
allowed to be taken outside the meeting room.
The AC Treuhand meetings were held monthly for
tin stabilisers and quarterly for ESBO/esters. Specific
country meetings were held to implement the
agreements reached at the AC Treuhand meetings.
5. Fines
In calculating the fines, the Commission applied
the 2006 Guidelines on Fines. (6) The Commission
calculated the fines to be imposed on each supplier
concerned on the basis of the value of their respective
sales.
The basic amount was multiplied by the number of
years of participation in the infringement, taking
fully into account the duration of the participation
of each individual undertaking in the infringement.
There were no mitigating circumstances. Aggravating
circumstances were applied for Arkema France
for recidivism. A multiplier to the fine was imposed
on Elf Aquitaine S.A. as a specific increase for deterrence,
pursuant to point 30 of the 2006 Guidelines
on fines.
6. Application of
the 2002 Leniency Notice
Chemtura was the first undertaking to submit information
and evidence, which opened the door
for the Commission to carry out targeted inspections.
Therefore, Chemtura was granted a reduction
of 100% for both tin stabilisers and ESBO/esters.
CECA/Arkema France/Elf Aquitaine was granted
a reduction of 30% for tin stabilisers and 50% for
ESBO/esters. Baerlocher was granted a reduction
of 20% for tin stabilisers and BASF was granted
a reduction of 15% for tin stabilisers and 25% for
ESBO/esters. Akzo’s contribution was not considered
as being of “significant added value”. Therefore,
the Commission did not grant Akzo any reduction
of its fines.
